Under Construction: A Brief History of Construction Law in the U.S.

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In conjunction with this summer’s construction of the Law School’s Campus Center within the library, we thought it appropriate to continue the theme with a display on Construction Law and its history.

A combination of contract law, commercial law, employment law, and tort, Construction Law is a branch of law that deals with matters relating to building, construction, engineering, and related fields. While the field was not officially recognized as an individual area of legal practice until the 1970s, Construction Law’s origins can be traced to the dawn of civilization. The earliest known written laws concerning construction trace back to Hammurabi’s Code, which dictates punitive measures towards builders whose actions cause damages to others. [1] Examples include:

229 “If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death.”

233 “If a builder builds a house for someone, even though he has not yet completed it; if then the walls seem toppling, the builder must make the walls solid from his own means.”

The Codes established the concept of civil damages which survives to this day.

Fast forwarding to the 1800s in America, the American Institute of Architects (AIA) was founded in 1857 by a group of 13 architects with the goal of promoting “the scientific and practical perfection of its members” and to “elevate the standing of the profession”. [2] In 1888, the AIA together with the National Association of Builders cosponsored and promulgated the Uniform Contract—a first national attempt to create a standard construction contract form. [3]

Because of many contractor defaults on federal contracts, Congress passed the Heard Act in 1893 and subsequently passed the more comprehensive Miller Act in 1935. The acts require that federal contractors post surety bonds to protect subcontractors and laborers against the contractor’s nonpayment, and likewise protects the government from the contractor’s nonperformance.

In 1955 the Uniform Arbitration Act is passed and adopted by most states. The act allows parties to agree to arbitration before a dispute arises—previously prohibited by common law.

A typical example is an arbitration that allocates costs of defects in a building project between architects, contractors and property owners.  Arbitrators are chosen by the parties with construction expertise to determine responsibility for defects.  The arbitration is conducted quickly.  It is free of the constraints of court-room procedure, and may be tailored to adducing evidence for the specific kind of dispute.  The parties all have a strong desire to avoid litigation and are normally satisfied with the results of arbitration.  Construction disputes have been regularly resolved by arbitration for a long period of time.[4]

Finally, in 1976, the ABA formed the Forum on the Construction Industry—thus recognizing Construction Law as a distinct area of practice.

The construction world is changing rapidly because of underlying changes in the way projects are designed, built, and delivered. Simultaneously there is a sharp reduction in the number of disputes that are fully litigated and result in a considered judicial opinion that can serve as source of precedent. Thus, there is a fair amount of uncertainty in the field whether the law can keep up when the number of new decisions is so low.[5]

 

[1] Bruner, Philip L. "Construction Law: The Historical Perspective." Bruner and O'Connor on Construction Law. St. Paul, MN: West Group, 2002. N. pag. Print.

[2] History of The American Institute of Architects. The American Institute of Architects, 2008. Web. 13 June 2017.

[3] Smith Currie & Hancock -Eugene J. Heady. "Construction Law - the History Is Ancient!" Lexology. Smith Currie & Hancock, 19 July 2012. Web. 13 June 2017.

[4] "Arbitration Act (2000) Summary." Uniform Law Commission. National Conference of Commissioners on Uniform State Laws, n.d. Web. 13 June 2017. <http://www.uniformlaws.org/ActSummary.aspx?title=Arbitration+Act+%282000....

[5] Ltd, Http://www.lbresearch.com Law Business Research. "What Lies Ahead for Construction Law and Practice." Who's Who Legal. N.p., Apr. 2014. Web. 13 June 2017.

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Justin Rogowski
Access Services Assistant,UConn Law